Whilst the case appears relatively narrow on its facts, it provides an interesting reminder of the wide definition of 'worker' applicable to whistleblowing claims.
Section 230(3) of the Employment Rights Act 1996 (ERA) provides a general definition of 'worker'. This includes employees and people who do not work under a contract of employment but who nevertheless perform work for their 'employer' personally, for example some types of independent contractor.
For the purposes of whistleblowing protection, the definition of 'worker' is extended to cover homeworkers, some non-employees undergoing training or work experience, some self employed health professionals, agency workers, police officers and student nurses and midwives.
In this case Dr Day sought to rely on this extended definition of 'worker', in particular the provisions usually relating to agency workers.
Dr Day entered into a training contract with the London Deanery, later part of Health Education England (HEE), in early Spring 2011. As part of his training, he worked under a contract of employment with a series of NHS trusts. Dr Day raised a number of concerns about what he considered to be serious staffing problems affecting the safety of patients. He presented whistleblowing claims in the Employment Tribunal (ET) against both the employer NHS Trust and HEE.
In response, HEE asserted that it should not be named as a party to the proceedings. In order to bring whistleblowing proceedings, HEE suggested Dr Day would need to be a 'worker' and the Respondent was his employer. The parties agreed that HEE was not the employer, but Dr Day sought to rely on the extended definition of a 'worker' under the ERA (above) that allows third parties who have 'introduced' the worker to the employer, and who have determined the terms under which the worker provides his services, to be named in proceedings.
The ET dismissed the claim against HEE. It found the relationship with HEE to be "a training relationship which subsisted alongside the employment relationships with the various NHS trusts who were [Dr Day's] employers." Dr Day's appeal to the Employment Appel Tribunal was refused and he subsequently appealed to the CA.
The CA upheld Dr Day's appeal finding that HEE "introduced or supplied" Dr Day to the NHS Trust employer.
On this basis, the Claimant was held to be a 'worker' in relation to HEE, and was therefore permitted to name HEE as a Respondent in his whistleblowing claim.
This decision is a useful reminder of the extended definition of 'worker' applicable in the context of whistleblowing claims. Individuals may be able to bring claims against organisations which introduce them to third parties, where the introducer and/or the end user determine the terms under which the individual works.